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Thursday, 31 October 1912


Senator DE LARGIE (Western Australia) . - The question with which we are dealing is a very complicated one. It is complicated by the doubts which have been expressed as to our constitutional powers ; but. the Government have throughout made it clear that they believe we have full constitutional powers to deal with anything pertaining to the coasting trade of Australia. We do not assume to have full power to deal with foreign ships, but we have always assumed that we have full power to legislate for Australian shipping in whatever way we please, whether as to labour conditions, the seaworthiness of the vessels trading, or any other conditions. The matter becomes complicated when we come to deal with foreign ships that are not British ships; but we hold that when they come into competition with Australian ships it is fair to insist that there shall be no violation by them of the conditions which we apply to Australian ships. But when it comes to a question of seaworthiness we are dealing with a much wider matter, and one that is open to all kinds of complications. The various nations of the world have different standards of seaworthiness, and different ideas as to how it should be measured. For instance, Great Britain leads the way as far as loadlines are concerned. Other nations take other means of determining when a ship is seaworthy and when she is not. France, Germany, and the United States, to single out three countries, have every right to enforce their own ideas of seaworthiness in regard to their own ships, and to a certain extent we respect their conditions. But there are limitations. For instance, we would not allow even a French or a German vessel to leave an Australian port if we were not thoroughly convinced that she was seaworthy.


Senator Guthrie - We would not allow a foreign vessel to come into Melbourne without a pilot.


Senator DE LARGIE - Quite so. and we would not allow her to leave Australia for her home port if it were considered that human life on board was placed in imminent risk owing to the unseaworthy condition of the vessel. It will therefore be seen that there are degrees of control even in regard to foreign shipping. In the present instance we are taking only a reasonable precaution against further delay. If there is one Commonwealth measure more than another as to which there has been delay it is the Navigation Bill. We have had it before Parliament year after year since 1904. Are we to run the risk: of having all our work hung up because there may be in the Bill some provision to which exception is taken? I consider that the Government have adopted a wise precaution in the present instance. If we attempt to make hard and fast rules when we are not quite sure of our ground, we may cause further delay. I do not think that we should be wise in delaying any further a Bill for which the country has been asking so long; and it is because of that that 1 consider that the Government have acted wisely in inserting the amendment before us. Although we may appear to express some doubt as to our constitutional powers, we do so in such a mild form that we can very well allow the amendment to go, knowing that by so doing, we are securing a sure and quick passage for this Bill.

Motion agreed to.

House of Representatives' Amendment.- After clause 1 insert the following new clause : _ " ia. - (1.) This Act shall not apply in relation to any Australian-trade ship, limited coast-trade ship, or river and bay ship, or her master or crew, unless the ship -

(a)   is engaged in trade or commerce with other countries or among the States; or

(b)   is on the high seas, or in waters which are used by ships engaged in trade or commerce with other countries or among the States; or

(c)   is in the territorial waters of any Territory which, is part of the Commonwealth. (2.) This Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this sub-section, have been construedas being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."

Motion (by Senator Pearce) proposed -

That the amendment be agreed to.

SenatorLt. -Colonel Sir ALBERT GOULD (New South Wales) [4.15].- This is rather an important amendment. If honorable senators turn to the Bill they will find that an Australian trade ship is defined as including - every shipother than a limited coast-trade ship or river and bay ship) employed in trading or going between places in Australia, and every ship employed in trading between (a) Australia and (*) territories under the authority of the Commonwealth, New Zealand, or the islands of the Pacific.

So that an Australian trade ship is denned in the first instance as being a ship trading between various places in Australia and New Zealand or the islands of the Pacific ; and then we have a new clause which practically deals with an Australian trade ship which may be trading elsewhere. In other words, the effect is that an Australian trade ship is defined as a ship trading between the Commonwealth and any part of' the world.' Say that a .ship is registered in Sydney, and is trading to the islands and to London. She becomes an Australian trade ship ; and we then provide that she shall be subject to this measure. That seems to be a strange way of determining the matter. I do not know the object of defining an Australian trade ship, unless by way of limitation. If we said that an Australian trade ship was any ship registered in Australia, I could understand it at once. But we say here first that an Australian ship is only to be a ship trading between certain ports, and then we provide that the term is to be applicable to a ship trading between Australia and other countries or among the States.


Senator Guthrie - - That is broad enough.


Senator Lt Colonel Sir ALBERT GOULD - My objection is that on the one hand it is proposed to limit the responsibilities of an Australian trade ship, and that by this new amendment it is proposed to make an Australian trade ship liable to the whole of the conditions of the Bill as long as she is registered in Australia.


Senator Guthrie - Where does the liability come in?


Senator Lt Colonel Sir ALBERT GOULD - We are proposing to throw certain responsibilities and liabilities upon the owners of an Australian trade ship. I should like the Minister to explain in the first place why it was considered necessary to introduce this amendment, and, in the next place, what was the use of introducing it? It would appear that the Government are doubtful as to our rights and powers in this respect, and that, therefore, they have inserted the following extraordinary provision : -

This Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this sub-section, be construed as being in excess of that power, it shall, nevertheless, be a valid enactment to the extent to which it is not in excess of that power.

So that practically the Government are inviting people to raise the question as to whether we are acting within or beyond our powers ; and then they want to save their face by saying that if the Court holds that we are acting beyond our powers in one clause, the whole Bill is not to be invalidated.


Senator de Largie - It* is a mere precaution, and I think a wise one in the light of a previous decision of the High Court.


Senator Lt Colonel Sir ALBERT GOULD .- The decision of the High Court, to which the honorable senator alludes, was to the effect that where an integral portion of an Act was ultra vires, the whole Act was invalidated. But I can conceive of a small provision being beyond our powers, whilst not invalidating the whole Act.


Senator Guthrie - The whole of the Seamen's Compensation Act was invalidated because of one provision.


Senator Lt Colonel Sir ALBERT GOULD - It is doubtless in consequence of that action of the High Court that the provision which I have quoted has been inserted. We must all be in sympathy with the desire to build up an Australian trade, but we must at the same time take care that we do not put people who engage in that trade in a very unfair position in competition with those foreign shipowners who trade with Australia. We provide in the new clause that Australian trade ships, when trading with other countries in competition with foreign ships, are to adopt certain scales of manning and accommodation, together with a multiplicity of other requirements. That is to say, we are going to put up these ships in competition with foreign ships with which we cannot interfere, and expect them to compete satisfactorily under such a handicap. I can quite understand a provision reserving the coasting trade for our own shipping, and setting out that if foreign vessels wish to participate in it, they shall conform to the conditions prescribed by our law. But here we are going beyond that in providing that a ship going abroad shall be bound by the conditions applicable to our coasting trade, although she will have to compete with foreign ships that are under no such obligation. Evi- dently, we are placing our shipping in a very unfair position. In clause 286 of the Bill it is provided that -

A ship shall be deemed to engage in the coasting trade if she takes on board passengers and cargo at any port in Australia, or at any Territory under the authority of the Commonwealth, to be carried to and landed or delivered at any other port in Australia or in any such Territory.

I assume that when making a provision in regard to our coasting trade, we are acting within our competency. But it is a difficult matter when we insert a provision affecting Australian trade ships engaging in trade or commerce with other countries. Take a foreign ship trading between Australia and Fiji. What authority have we to make her comply with this measure?


Senator Guthrie - All the authority in the world.


Senator Lt Colonel Sir ALBERT GOULD - We have no authority to make her comply, because she is not trading on our coast. We might as well attempt to say that a ship trading between Australia and America is an Australian-trade ship. Do honorable senators mean to tell me that we should be able to make our navigation law binding upon a French, German, or American ship trading between Australia and a foreign country?


Senator Guthrie - Why does Great Britain lay down conditions with regard to ships trading between British ports and the Continent ?


Senator Lt Colonel Sir ALBERT GOULD - Great Britain is a paramount Power, and any legislation which she passes has to be enforced, in the face of treaties and arrangements with other countries. But we have no power to bind the ships of any other nation.


Senator Guthrie - Are not foreign ships liable to our police laws?


Senator Lt Colonel Sir ALBERT GOULD - While they are in Australian waters; but we cannot say to a foreign ship that she shall not carry a bag of wheat from Melbourne to Fiji without our authority.


Senator Guthrie - We can say that the wheat shall not be placed on board.


Senator Lt Colonel Sir ALBERT GOULD - But that would be different legislation from that which we are now enacting. If we were foolish enough we could impose a duty on any commodities exported from this country, and the duty might be so enormous -that it would be ruinous to any one to export. But here we are foolishly and unfairly harassing ships registered in our own country. It would be far better for them to register in some other part of the world than here. Indeed, it is much more satisfactory for shipping companies to register their vessels in England than in Australia. Some of our Commonwealth lines of steamers are registered in London.


Senator Guthrie - Some British ships register in Hamburg and Antwerp to avoid British conditions. Holt's Blue Funnel vessels do that.


Senator Lt Colonel Sir ALBERT GOULD - Then they are not British ships.


Senator Guthrie - They are Britishowned, but they register abroad because they want to carry what is no better than slave labour.


Senator Lt Colonel Sir ALBERT GOULD - They do that in order to get cheaper labour to enable them to compete with other British ships on more favorable terms. Under this Bill, Australian trade ships would certainly not be able to compete against such vessels. If honorable senators are going to take this line of action, they will prevent our vessels from competing with foreign ships. We ought to consider very carefully to what extent we should place harassing restrictions upon our shipping, and whether it would not be much better to place only such restrictions upon it as may- be regarded as fair and reasonable, taking into consideration the nature of the trade and the. competition. We should not attempt to destroy the building up of a mercantile marine, because the great protection of any country is to have a mercantile marine which is not registered in other parts of the world, but in its own ports. Our duty is to consider carefully the competition our ship-owners have to meet ; they cannot keep the trade entirely to themselves, but must share it with other nations. Apparently, honorable senators on the other side desire to place the trade under such conditions as will render it impossible for a firm whose ships are registered in Australia to compete with the foreigner.


Senator Rae - Are the conditions appli- . cable to British shipping high enough to suit you?


Senator Lt Colonel Sir ALBERT GOULD - Perhaps not. We can only legislate for the shipping of our own country. We cannot shut out the foreign competition between Sydney and Fiji ; therefore, we ought to take such steps as will enable our ship-owners to meet that competition on the best possible conditions. If we handicap our own shipping, we cannot possibly build up a mercantile marine. We know that the Powers which are attempting to rival Great Britain subsidize their ships very largely. Our ships do not receive any subsidies, but they have to fight foreign competition in the best way they can. As the competition they have to meet is very unfair, I appeal to honorable senators on the other side to not make the position more difficult for them by imposing on them a further handicap.







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